Delhi District Court
State vs . Ajay Rana on 27 February, 2020
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-07, WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE
VERSUS
AJAY RANA
Computer ID No. 69359/16
FIR No.448/2012
P.S. Tilak Nagar
U/S 33/38 Delhi Excise Act
HC Amrit Singh,
No. 2559/ West,
PIS No. 28822844,
PS Tilak Nagar,
New Delhi
........ Complainant
VERSUS
Ajay Rana
S/o Sh. Mohan Singh Rana,
R/o H. No. A-631, JJ Colony,
Khyala, New Delhi.
......... Accused
Date of Institution : 03.07.2013
Date on which judgment was reserved : 18.02.2020
Date of judgment : 27.02.2020
Final Order : Acquitted
FIR No. 448/2012
PS Tilak Nagar
State vs. Ajay Rana
JUDGMENT
The important facts of the present case are as follows :
1. In the instant case, accused namely Ajay Rana s/o Sh.
Mohan Singh has been set up by the prosecution to face trial on the allegations that on 12.11.2012, at about 06:25 pm, in front of Sethi Hotel, Vishnu Garden, Khyala Road, Tilak Nagar, the accused was found in possession of 06 boxes of illicit liquor each having 48 quarters of illicit liquor (for sale in Chandigarh only) in a car bearing no. DL-4CAL-4310 Tata Nano with the knowledge that said liquor was unlawfully imported within the territory of Delhi and on which the prescribed excise duty has not been paid. Therefore, the accused was alleged to have committed offence punishable u/s 33/38/58D Delhi Excise Act.
2. The FIR was lodged in respect of offences punishable under sections 33/38 Delhi Excise Act by HC Amrit Singh against the accused. Investigation commenced and final report/ Charge sheet under section 173 Cr.P.C. was filed against the accused Ajay Rana in respect of offences under sections 33/38/58D Delhi Excise Act.
3. Cognizance was taken against the accused vide order dated 03.07.2013 and the accused was summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.P.C vide order dated 12.11.2013, charges u/s 33/38/58D Delhi Excise Act were framed against the accused namely Ajay Rana to which he pleaded not guilty and claimed trial.
4. Thereafter, the matter was fixed for prosecution evidence. Prosecution examined 4 prosecution witnesses to prove the charge FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana against the accused.
5. PW-1 / recovery witness/Complainant HC Amrit Singh deposed that on 12.11.2012, he along with Ct. Vinod Kumar were deputed for patrolling duty in the area of beat No. 2, Vishnu Garden, Tilak Nagar. During patrolling, at about 06.20 pm, one Tata Nano Car bearing no. DL-4CAL-4310 was observed to moving in a hurried manner. Therefore, the said vehicle was signaled to stop on the basis of suspicion. After the vehicle was got stopped, the witness/PW1 found that the same was being driven by the accused Ajay Rana. On the backside of the car, six cartoon boxes/ gatta petti were found to be placed. On checking, the said 6 cartoon boxes were found containing illicit Liquor. Thereafter, PW1 called in the PS Tilak Nagar to give information and the IO/ASI Dharampal came to the spot. The custody of the accused Ajay and the car containing illicit liquor was handed over to the IO by PW1. Thereafter, the IO opened the said boxes which were kept in the car and the said boxes were found to be contained 48 quarter bottles each of illicit liquor (NV Bestow Whisky for sale in Chandigarh Only). Thereafter, the IO took the samples from each of the cartoons boxes. After the samples were taken, the 47 quarter bottles in each box was sealed with the help of a white cloth and the same were sealed with seal of 'DP' and were given the serial No. 1 to 6, and the samples which were taken were also sealed with the seal of 'DP' and were given serial No. from 1A to 6A. Thereafter, the recovered illicit liquor was seized vide seizure memo Ex. PW1/B. PW1 deposed that IO filled the Form M-29 and after putting the seal, the seal was handed over to PW1. The witness proved the seizure memo of the Tata Nano Car Ex. PW1/C, arrest memo of accused Ex. PW1/D and personal search memo of the accused Ex. PW1/E. He also proved the rukka on the basis of which, the FIR was got registered and also the disclosure statement of the accused Ex.PW1/F, site plan which was prepared by FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana the IO at his instance Mark A. PW1 correctly identified the accused and the case property/ recovered bottles of illicit liquor during his testimony. In his cross-examination, witness/ PW1 admitted the fact that place/ spot from where accused was arrested was a residential area and that public persons were coming and going from there. He deposed that despite efforts by the IO, no public witnesses were joined at the time of effecting the recovery of the illicit liquor. PW1 admitted that no notice was given to any public person to whom IO had requested for joining the investigation. He deposed that the documents namely site plan, seizure memo of the vehicle, seizure memo of the liquor and form M-29 were prepared by the IO prior to sending the rukka on the basis of which the FIR of the instant case was got lodged. He also admitted the fact that the seal was handed over to him by the IO after the case property was sealed and that he had returned the same to the IO on the same day itself and that no handing or taking over memo of the seal was prepared in this respect.
6. PW-2/ Ct. Subhash, deposed that on 07.12.2012, while being posted as a Constable at PS Tilak Nagar, on the instruction of the IO, he had taken a sealed plastic Katta with the seal of 'DP' along with copy of the FIR and copy of the seizure memo from MHC (M) for purpose of taking the same to Excise, office, Vikas Bhawan, ITO for result. He deposed that the samples of the illicit liquor which were in his possession, were not tempered with while the same remained in his possession. In his cross examination, he admitted the fact that he has not brought the Road certificate, vide which he had taken the case property to Excise Office, ITO.
7. PW3/ Ct. Vinod deposed on same lines as PW1. He also proved the seizure memos Ex. PW1/B and PW1/C, arrest memo of accused Ex. PW1/D, personal search memo of the accused Ex.PW1/E, disclosure statements FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana of the accused Ex.PW1/F. He deposed that the IO had prepared the tehrir and the same was handed over to him for getting the FIR registered and that he had got the FIR of the instant case registered on the basis of the said tehrir. PW3 correctly identified the accused and the case property/ illicit liquor during his testimony. In his cross-examination, PW3 admitted the fact that the spot from where the accused was arrested was a residential area and that he as well as HC Amrit had not asked any public person to join the investigation at the time of the recovery of illicit liquor. He deposed that IO had prepared the seizure memo of illicit liquor prior to sending rukka/tehrir to the PS.
8. PW4/IO/ SI Dharampal deposed that on 12.11.2012, he had went to the spot i.e at Sethi hotel, Khyala Road, Vishnu Garden, New Delhi after the duty officer had handed him DD No. 27A, PS Tilak Nagar the FIR at about 06:40 pm. At the spot he met HC Amrit and Ct. Vinod. HC Amrit had handed over the custody of the car Tata Nano bearing no. DL-1CAL-4310 in which the illicit liquor was kept along with the accused. Thereafter, IO seized the case property/ illicit liquor and the car in which the said liquor had been kept vide seizure memo Ex. PW1/B and filled the form M-29 Ex. PW4/A. Thereafter, the IO/ PW4 arrested the accused vide arrest memo Ex. PW1/D and his personal search was carried out vide personal search memo Ex. PW1/E. He deposed that he had recorded the statement of HC Amrit and on the basis of the same, he had prepared a rukka and the same was handed over to Ct. Vinod for getting the FIR registered. He deposed that he had took samples of the illicit liquor from each of the cartoon box and that he had sealed the case property/ illicit liquor and the samples with the seal 'DP'. He also proved the site plan which was prepared by him at the instance of HC Amrit Ex. PW4/B. He deposed that he had deposited the case property in the malkhana and had got the sample(s) deposited in the FSL through Ct. Subhash on 07.12.2012. He FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana deposed that after collecting the FSL result and completion of the investigation, he filed the challan under section 173 Cr. P.C before the court. PW4 correctly identified the accused and the case property/ illicit liquor during his testimony. In his cross-examination, PW4 deposed that he had arrived at the spot at about 07.00 pm. He deposed that the spot was surrounded by residential/ commercial area and that he had requested 3-4 public persons to join investigation. However, as per the version of PW4, no one agreed and he deposed that he had not given any notice to any such person(s). PW4/ IO admitted the fact that he had prepared the seizure memo of the illicit liquor prior to sending rukka. He deposed that he had prepared the site plan during the period when Ct. Vinod had gone to the PS for getting the FIR registered and that he had not made any addition or alteration on the documents which were prepared by him before sending the rukka. He deposed that all the documents were prepared at the spot while sitting near Sethi Hotel. PW4/ IO categorically denied the suggestion of the accused that nothing was recovered from the possession of the accused or that he had not conducted a fair investigation.
9. The accused had admitted the fact of registration of the FIR of the instant case and the report of the chemical examiner under proceedings carried out under section 294 Cr.P.C and therefore, the duty officer and the chemical examiner were dropped from the list of the witnesses. As no other witness was left to be examined, hence PE was closed. Thereafter, statement of accused under Section 313 Cr. P.C. was recorded in which all incriminating circumstances appearing in evidence against the accused were put to him to which he pleaded that he was innocent and that he was falsely implicated in this case. At the time of his statement under section 313 Cr. P.C, the accused submitted that he does not wish to lead DE and therefore, DE was closed and the matter was fixed for addressing final arguments.
FIR No. 448/2012PS Tilak Nagar State vs. Ajay Rana
10. Arguments addressed by defence counsel and Ld. APP have been heard and record has been perused.
11. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case, the prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
12. After considering respective arguments and evidence led by prosecution, the undersigned is of the considered opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The accused Ajay Rana deserves acquittal of the charges which have been framed against him on following grounds:-
13. Firstly, from prosecution version, it does not appear that before checking the car of the accused, recovery witnesses made any sincere efforts to join public persons to witness search. No notice has been proved on record to show that any public person was asked to join the search proceedings. The place at which illicit liquor was allegedly recovered is admittedly, a public place and it is not the case of prosecution that public witnesses were not available at that place. Non joining of public witnesses causes a major dent in FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana credibility of prosecution version and had public witnesses witnessed the recovery of the case property, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused persons would have made prosecution version more reliable. As it is established principle of law that where a number of public persons would be available, but no public witness has been engaged in this case nor any sufficient explanation given for non- joining the public witness at the time of apprehension of accused. In the case where the public witness are easily available and they are not being joined without any justified reason, the statement of police witnesses only cannot be relied. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
14. At the same time, as per the testimony of prosecution witnesses itself, the seal 'DP' after use on the Kattas containing the liquor allegedly recovered from the accused persons was given to none else but to FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana PW1/HC Amrit Singh, who himself was the complainant and a recovery witness. Such material witness of a case is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out beyond reasonable doubt. Further, admittedly, no DD entry of handing over or returning of seal is on record/proved.
15. Prosecution evidence also reveals that the documents pertaining to the investigation which were prepared by the IO i.e the site plan, seizure memo of the car in which the illicit liquor was kept, seizure memo of the recovered illicit liquor and of the sample, all were prepared before the registration of the FIR but yet both the seizure memo as well as Form M-29 as well the site plan bears the FIR number. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR has appeared on the top of the aforesaid documents which were allegedly prepared on the spot before registration of the FIR, especially in light of the fact that the IO/ maker of these documents has himself admitted in his cross examination that after these documents were prepared by him prior to the sending of the rukka, he has not made any addition/ alteration in these documents. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery in the manner alleged by the prosecution. Similar view has been held in Zohra vs State 2000 (83) DLT 177 (Del).
16. Thus, cumulatively seen, from the above stated facts the recovery of illicit liquor from the possession of accused as has been alleged by FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana the prosecution becomes doubtful. These are material missing link in version of prosecution and planting/tampering of case property/illicit liquor in these circumstances cannot be ruled out. In view of the foregoing discussion, it is held that the prosecution has not been able to successfully build the case against the accused Ajay Rana. As there are material discrepancies in the prosecution case, it is a fit case in which benefit of doubt must be given to the accused. Accused Ajay Rana is thus entitled to benefit of doubt and is accordingly acquitted for offence u/s 33/38/58D of Delhi Excise Act.
17. Requirements of Section 437A Cr.P.C have been complied with by accused Ajay Rana.
18. Copy of the judgment be placed on case file and copy of the same be supplied to the accused.
19. File be consigned to Record Room after due compliance.
Digitally signedPUNEET by PUNEET NAGPAL Decided on 27.02.2020 NAGPAL Date: 2020.02.27 09:56:03 +0530 Announced in the Open Court (PUNEET NAGPAL) MM-7, West District THC/Delhi FIR No. 448/2012 PS Tilak Nagar State vs. Ajay Rana